The late Yitzhak Rabin explained his decision to sign the Oslo Accords, among other reasons, because Yasser Arafat and the Palestine Liberation Organization would deal with terrorists "without the High Court and B'Tselem." Now the current prime minister, Ariel Sharon, has made the Supreme Court into a scapegoat for Israel's security difficulties. At a Likud faction session on Sunday, he said the construction of the separation fence is being delayed by the High Court. "The problem is the legal system," the prime minister diagnosed.
There once was a prime minister who bowed his head before the Israeli judiciary and proudly declared, "there are judges in Jerusalem." It was not an empty gesture. Menachem Begin was a democrat by choice and conscience, with genuine respect for the courts, and he understood the enormous importance of an institution meant to preserve the proper function of life in the country.
The current prime minister has a different attitude toward judges - he compared justices Yitzhak Kahan and Aharon Barak, who sat on the committee that investigated Sharon's measure of responsibility for the massacres at Sabra and Chatila, to evil-minded black crows. It's also known that Sharon and his sons occasionally encounter the Israeli legal system under circumstances that presumably do not encourage their sympathy for it.
Sharon found it proper to attack the High Court, and by doing so gave a green light to other public officials to do the same in his stead. The chairman of the Knesset Constitution, Justice and Law Committee, Michael Eitan, wondered aloud why the judiciary, and not the executive branch, decides on the proper amount of proportionality in the security realm, and yesterday the finance minister, Benjamin Netanyahu, joined the attack on the courts.
Those voices come a week after the court ordered the House Committee to reconsider the decision not to lift the parliamentary immunity of MK Michael Gorolovsky, and not long after Knesset Speaker Reuven Rivlin reiterated his objections to the court's intervention in Knesset sovereignty (though Rivlin did show understanding for the court's position on Gorolovsky's matter).
It is disappointing to hear the country's leaders turning their backs on their duty to respect the High Court and protect its prestige, and it is very revealing that they do not hesitate to impugn it and undermine its authority when the matters the court is considering touch directly on them.
If they were to examine the positions of the High Court without all the attendant raving, they would discover the court's real attitude toward security matters as presented by the state during petitions that deal with its behavior in the territories.
On the Web site of the Center for the Defense of the Individual, the High Court of Justice is quoted on various petitions about the distress of residents of the territories resulting from the occupation. There are dozens of them. The picture that emerges is usually of consistent support by the justices for the position taken by the state.
Here are some examples: The High Court rejected a petition against the expulsion of residents from the territories; except in a few cases, it rejects petitions against house demolitions and chooses not to intervene in the defense establishment's position that house demolitions are a deterence against future terrorism; the court rejected a petition against the use of flechette shells; the court allowed the destruction of entire buildings even if parts of the building were occupied by people who had nothing to do with terrorist activity; the court rejected a petition by the family of a terrorist killed in Jerusalem to return his body to them, accepting the defense establishment's argument that the body is a bargaining card in the struggle over learning the whereabouts of the then-missing soldier Ilan Sa'adon; the court rejected a request for a day burial of a dead Palestinian and not at night as ordered by the army, because it accepted the army's argument that a daytime funeral could result in a disturbance to the public order; the court rejected petitions to put soldiers on trial for delaying pregnant women at checkpoints until their babies died; and even on the issue of the separation fence, the High Court of Justice rejected quite a few petitions against the expropriation of Palestinian land.
It is not clear how historians will judge the degree of enlightenment shown by the High Court of Justice toward Israel's behavior in the territories. What is clear is that national leaders have been discrediting it - and for the wrong reasons.
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